C-52/00

OPINION OF MR GEELHOED — CASES C-52/00 AND C-1 83/00

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 18 September 2001 1

I — Introduction minimum harmonisation of liability for damage caused by defective products within the Community.

1. Both these cases concern the interpre- tation of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the First of all, I shall outline the legal frame- laws, regulations and administrative provi- work and summarise the facts relevant to sions of the Member States concerning each case. liability for defective products 2 ('the Direc- tive').

'...

(i) is of a type ordinarily intended for private use or consumption, and (d) that the defect is due to compliance of the product with mandatory regu- lations issued by the public authorities; or

(ii) was used by the injured person mainly for his own private use or consumption. (e) that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered; or

(f) ...'

5. Article 13 provides:

4. Article 9 defines 'damage' for the pur- pose of Article 1 of the Directive in the following terms: 'This Directive shall not affect any rights which an injured person may have accord- ing to the rules of the law of contractual or non-contractual liability or a special liabil- ity system existing at the moment when this Directive is notified.'

— Article 1386-11(1) provides that a pro- ducer is automatically liable unless he 1. National legislation proves:

7. Under the French legislation transposing the Directive into national law, that is to say Law No 98-389 of 19 May 1998, the

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(4) that, at the time when the product 2. The facts was put into circulation, scientific and technical knowledge was not such as to enable the existence of 8. Under Article 19 of the Directive, the defect to be discovered; Member States were required to transpose the Directive into national law by 30 July 1988. Since the French Republic had not effected implementation within the time- limit stipulated, the Court of Justice delivered a judgment to that effect on 13 January 1993. 3Finally, after a delay of almost 10 years, the French Republic on (5) that the defect is due to compliance 19 May 1998 enacted legislation transpos- of the product with mandatory ing the Directive into national law. That regulations issued by the public law introduced into France a system of authorities; liability without fault, under which there was no maximum limit.

9. Following an exchange of letters in March 1998 between the Commission's ...' services and France's Permanent Represen- tative, the Commission decided to com- mence proceedings under Article 226 EC for failure by France to fulfil its obligations, and on 6 November 1998 issued a letter of formal notice. The French Government replied by letter of 12 January 1999. The reasoned opinion was issued on 6 August 1999. The French Government replied on — Article 1386-12, second paragraph, 6 October 1999. stipulates as follows:

12. Ms Gonzalez Sánchez received a blood transfusion at the hospital, 'Centro Médico de Asturias', following which she became B — Case C-183/00 infected with the hepatitis C virus. As a result of that, Ms González Sánchez brought an action for compensation for damage against Medicina Asturiana SA, the proprietor of the abovementioned hospital.

I. National legislation

13. Ms Gonzalez Sánchez based her claim on the general provisions concerning liabil- I I . The Directive was transposed into ity contained in the Spanish Civil Code and Spanish law by Law 22/1994 of 6 July on Articles 25, 26 and 28 of Law 26/84.

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Medicina Asturiana SA denied all liability, will only escape liability by proving that the alleging, among other grounds, that, under victim was exclusively at fault or, alter- Law 22/94, Articles 25, 26 and 28 of Law natively, that the cause was force majeure 26/84 no longer applied. or pure chance.

18. Another difference between the two laws is that, under Law 26/84, the plaintiff may sue the manufacturer, importer, sup- plier or seller, who are jointly liable to the 15. The Spanish court considered that, consumer; whereas under the Directive before delivering judgment, it was necess- and, in turn, Law 22/94, Ms Gonzalez ary to submit a question for a preliminary Sánchez would not be able to establish ruling, in view of the consequences of liability on the part of Medicina Asturiana applying one law or the other for the SA, since the latter is classed as the supplier purposes of assessing the burden of proof, due to the fact that the 'manufacturer' or on account of the different systems of 'producer' of the units of blood has been liability established by each law, and in identified as the Centro Comunitario de order to identify the persons liable. Transfusión del Principado de Asturias, a body which has not been made a defendant to the action.

16. The national court has also indicated 19. The referring court points out that Law that Law 26/84 lays down a system of 26/84 affords greater protection to con- liability without fault, whereby the plaintiff sumers than Law 22/94. That also emerges needs only to prove the damage and the from a consideration of factors such as the causal relationship, whereas the defendant inclusion of a lower threshold in the case of

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OPINION OF MR GEELHOED — CASES C-52/00 AND C-183/00

damage caused by the product to an item of IV — The legal nature of Directive property (Article 9(b) of the Directive), or 85/374/EEC the provision for the extinction of liability 10 years after the product was put into circulation (Article 11 of the Directive), although those factors have no bearing on this case. A — Introduction

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mission. Those observations deal exclus- which national legislatures are fully bound. ively with the question set out above. That would imply that the question referred should be answered in the negative.

In Case C-52/00, the dispute between the Commission and the French Government goes further. In those proceedings, in addition to the question set out here, the parties have also expressed their views on 26. In Case C-52/00, as in Case C-183/00, the three pleas in law which are set out in the French Government takes the view that the Commission's application. the Directive envisages only a minimum level of harmonisation, which does not preclude national legislatures from provid- ing consumers with greater protection than the Directive. The Commission takes the 24. In this section of my Opinion, I will opposite view. In Case C-52/00, the French first of all state and analyse the main Government's stance implies that the dis- arguments relating to the substantive issue puted legislation which gives effect to the in both cases. In section (V) I will summa- Directive is entirely lawful. Consequently, rise the arguments in Case C-52/00 con- the specific pleas in law put forward by the cerning the specific pleas in law put for- Commission challenging that legislation are ward by the Commission, and will then go claimed to be wholly groundless. The on to analyse them. Commission's stance also implies that the French legislation must be precisely exam- ined by reference to the Directive, which must entail analysing each plea in law in turn to determine whether the relevant parts of the legislation in question remain within the purview of the Directive. B — Arguments

30. As regards Case C-183/00, the plaintiff in the main proceedings and the above- mentioned Governments conclude from the foregoing that, as a result of Article 13 of 'Whereas under the legal systems of the the Directive, an affirmative reply may be Member States an injured party may have a given to the question referred by the claim for damages based on grounds of national court. As regards Case C-52/00, contractual liability or on grounds of non- the French Government infers from the contractual liability other than that pro- points set out above that national legis- vided for in this Directive; in so far as these latures retain the power to provide for a provisions also serve to attain the objective greater level of protection under national of effective protection of consumers, they legislation than that which is provided for should remain unaffected by this Directive; by the Directive. whereas, in so far as effective protection of consumers in the sector of pharmaceutical products is already also attained in a Member State under a special liability system, claims based on this system should similarly remain possible.'

34. The Commission also states that the expression 'special liability system', which is used in the second phrase of Article 13 of the Directive, refers to a special system for a specific sector, such as, for example, the 33. The Commission, supported by the system relating to medicinal products Spanish Government, points out that in which was in force in Germany at the time order to interpret Article 13 of the Direc- when the Directive was notified. However, tive correctly, a distinction must be drawn Spanish Law 26/84 did not contain a between the 'ordinary' contractual and special system for a specific sector of non-contractual liability which producers products. Accordingly, an amendment to may have under the national legal systems that law would have been necessary when of the Member States, and the system of the Directive was transposed into Spanish liability which applies to producers who law. The Spanish Government supports the sell defective products. As a result of Commission's interpretation, which, in its Article 13, the Member States are certainly opinion, is confirmed by the 13th recital in entitled to amend, either by making more the preamble to the Directive. stringent or more lenient, the basis of liability for a product in accordance with the rules of contractual or non-contractual liability. However, they cannot change the system envisaged by the Directive, under which producers are liable for defective products, unless and in so far as the Directive provides that they may do so. When the Directive was drafted, the Com- C — Analysis munity legislature undoubtedly opted for total harmonisation, as a result of which national legislatures may only lay down alternative provisions in a limited number of circumstances. Those circumstances are 35. The legislative process leading to adop- set out fully in Articles 15(1) and 16 of the tion of Directive 85/374/EEC was a very Directive. However, the Directive does not lengthy one. It was necessary to balance the permit Member States unilaterally to intro- interests of consumers and producers in a duce more stringent rules of liability for manner acceptable to all the Member defective products, since that would endan- States. Since, at the outset, the Member ger the uniformity and correct functioning States differed widely in their approach to of the common market which the Directive the question where precisely that balance seeks to achieve. Since the Directive pro- should be struck in relation to the system of vides for total harmonisation, any sub- liability for defective products, negotiations

36. Nor did the subsequent transposition of the Directive into the national law of the Member States pass without incident. As stated in paragraph 8 above, proceedings were earlier initiated against the French 38. The preamble to the Directive states Republic, and the Court found that France that the Directive is aimed at removing the had failed to comply with the Directive obstacles to a uniform common market, within the required time-limit. 4The King- which are caused by the coexistence of dom of Spain was also threatened with national legal systems with different tradi- proceedings for failure to fulfil its obli- tions, by the adoption of a system of gations. Proceedings between the Commis- liability for defective products. In addition, sion and the United Kingdom were initiated a uniform system would be able to remove before the Court of Justice. In its judgment, the distortion of competition caused by the the Court of Justice held that the Directive existing divergences between the legal sys- had been transposed by the United King- tems of the Member States. As a result of dom in such a way as to allow the national those two concerns, it would appear to be courts sufficient margin to interpret the desirable to opt for wider uniformity within domestic legislation in question in accord- the common market in relation to the ance with the Directive. 5 Currently, in applicable legislation. addition to the two cases now before the Court, proceedings are also pending in an action brought against the Hellenic Repub- lic for failure to fulfil its obligations. 6Very recently, the Court gave judgment in a reference for a preliminary ruling on the interpretation of Articles 7(a) and (c) and 39. I wish to emphasise that the choice of 9(a) and (b) of the Directive. 7 uniformity of legislation is wholly com- patible with the choice of a particular level — be it greater or lesser — of con- sumer protection. Reliance on Article 94 EC in no way prejudges the Community legislature's decision when striking a bal- 37. The French Government, in Case ance between the interests of consumers C-52/00, and the Greek Government, in and producers. If, when the Directive was adopted, the Member States had wished to opt for a higher level of protection, that 4 — Case cited in footnote 3 above. would have been possible. If they had 5 — Case C-300/95 Commission v United Kingdom [1997] ECR I-2649. wished to do so subsequently, they would 6 — Case C-154/00 Commission v Greece [2002] ECR I-3879. have had the opportunity to do so under 7 — Case C-203/99 Henning Veedfald [2001] ECR I-3569. Article 94 EC.

43. Secondly, it ignores the fact that Article 153 EC is worded as a valid instruction to the Community with regard 41. The French, Greek and Austrian Gov- to future policies. Under that provision, the ernments have submitted that, since the Community legislature would be entitled to Directive was adopted, views on the liabil- undertake initiatives to shift, in favour of ity of producers for damage caused by consumers, the current balance between the defective products have changed consider- interests of producers and those of con- ably. According to those Governments, that sumers which is laid down in the Directive. change is reflected in Article 153 EC, However, Article 153 EC does not, under which was inserted into the Treaty after any circumstances, grant Member States the Directive had been adopted. In their the power unilaterally to adopt measures opinion, the fresh legal approach of that which would infringe the rules of Commu- article supports the view that the Directive nity law laid down in directives to date. should be interpreted as aiming to achieve a Any other interpretation would endanger minimum level of harmonisation which the acquis communautaire of the uniform- does not affect national measures providing ity and correct functioning of the common greater protection to consumers. market. The wording and structure of Article 153 EC make it clear that that was a risk which the framers of the Treaty did not wish to incur.

42. In my view, that position is untenable. First of all, it overlooks the fact that the power of the Member States to adopt or retain measures which offer greater pro- 44. I therefore conclude that the Directive tection applies only to the measures cited in determines the full extent of the margin of

47. While it is true that Articles 15(1) and 16 of the Directive permit the Member States to derogate from the fundamental rules of the Directive in a number of 'Whereas it is particularly important in this respect that a re-examination be carried out of those parts of the Directive relating to 8 — OJ 1993 L 95, p. 29. the derogations open to the Member States,

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at the expiry of a period of sufficient length under the rules of the law of contractual or to gather practical experience on the effects non-contractual liability, is intended to of these derogations on the protection of make it clear that harmonisation of liability consumers and on the functioning of the for damage caused by defective products, common market'. which is the aim of the Directive, does not affect any additional rights which an injured person may have under the terms of a contract which he or she has entered into, or under the ordinary law of his or her Member State concerning liability for wrongful acts. The Directive contains no 50. The objective of the unity and func­ provisions relating to the ordinary law of tioning of the common market, which is set liability for wrongful acts; nor does it out in the first and last recitals, does not restrict the powers of national legislatures accord with the view that the Directive only in that regard. However, the wording of provides for minimum harmonisation. It Article 13 cannot be construed as reserving can be deduced from the wording of the to national legislatures a residual compet­ last two recitals that the Community legis­ ence concerning liability damage caused by lature considered that harmonisation was defective products. The Directive totally incomplete because there were still deroga­ harmonises that liability, save for the tions open to the Member States. 9 derogations provided for in Articles 15(1) and 16.

— National legislatures may only dero- gate from the Directive if, and in so far 55. Spanish General Law 26/86 on the as, the Directive itself so provides, and protection of consumers and users applies, they must comply with the relevant ratione materiae, to all goods and services rules and conditions set out in the offered to individuals. In so far as that law Directive. provided for a system of product liability at variance with the Directive, it would have been necessary to amend that law when the Directive was transposed into national law, even if that meant that thenceforth less favourable provisions from the point of view of a consumer protection system — The first part of Article 13 of the would be applicable. 1 0As the Spanish Directive does not permit national Government has also rightly pointed out, legislatures to adopt systems of liability neither the first nor the last part of for damage caused by defective prod- Article 13 can be relied on by the Spanish ucts which derogate from the Directive. legislature to nullify those consequences. In the area of liability for defective products, it is for the Community legislature to determine the balance to be struck between the interests of consumers, suppliers and producers. — The second part of Article 13 of the 10 — In this regard, it is appropriate to note that, although the Directive does not affect any rights Treaty requires the Community legislature to start from which an injured person may have the premiss that there must be a high level of protection, no provision of the Treaty obliges the Community legislature under national systems which existed to adopt the highest level of protection which exists in a particular Member State. See, for example, Case C-233/94 at the time when the Directive was Germany v Parliament and Council [1997] ECR I-240J. notified, and which govern liability for I - 3846

58. In support of its first argument, the French Government submits that the threshold stipulated by the Directive V — The specific pleas in law in Case would, in fact, prevent access to the courts C-52/00 by injured persons if the damage caused to their property by defective products were less than EUR 500. Such a denial of justice is contrary to Article 6(1) of the above- mentioned European Convention. The French Government also cites the judgment A — First plea in law: incorrect trans- of the Court of Justice in Krombach, 11 in position of Article 9 of the Directive into which the Court held that a contracting national laiv, inasmuch as Article 1386-2 party may rely on the public-policy clause of the Civil Code stipulates that the provi- contained in1 Article 27(1) of the Brussels sions concerning liability for damage Conventio 2 where the court of the caused by defective products also apply to Member State of origin has held that there cases where the damage to property is less was a manifest infringement of the right to than EUR 500 present a defence. As to the second argu- ment, the French Government submits that French civil law does not allow for any lower threshold.

1. Arguments of the parties 59. In support of its third argument, the French Government states that the thresh- old amounts to unequal treatment of con- 57. The French Government does not dis- pute that Article 1386-2 of the French Civil Code departs from Article 9 of the Direc- 11 — Case C-r/98 Kminkach |2000| LCR I-1935. tive by not providing for a lower threshold 12—The 1968 Brussels Convention on jurisdiction and the enforcement of judgments m civil and commercial matters of EUR 500. The French Government did (JO 1972 I. 299. p. 32), as subsequently amended.

sumers and producers. The consumers of desire to avoid a proliferation of litigation. products in which defects are liable to In that regard, the Commission refers to the cause only slight damage would be dis- eighth recital in the preamble to the Direc- criminated against in relation to consumers tive. of products in which possible defects are liable to cause serious damage to property. The same applies, mutatis mutandis, to manufacturers whose products ordinarily cause only slight damage as a result of their defects, and to manufacturers whose prod- ucts are liable to cause serious damage to property. 61. As to the French Government's second ground of defence, the Commission recalls the settled case-law of the Court of Justice according to which a Member State cannot rely on provisions of its national legal 60. The Commission states that the thresh- system to justify a failure to fulfil its old of EUR 500 in cases of damage to obligations under a directive. In addition, property does not amount to a denial of during the preparatory work leading to the justice where there is liability, because an unanimous adoption of the Directive the injured person will, in any event, still be French Government could have ensured in able to bring an action under the Ordinary' advance that the Directive would be com- rules of non-contractual liability. The Com- patible with its national legal system. 14 mission also points out that the provisions of the Directive concerning liability for damage caused by defective products have strengthened the rights of consumers vis- à-vis any rights that they may have had previously under the law of their Member States concerning non-contractual liability for wrongful acts. The Commission con- siders that the reference to Krombach is 62. Finally, the Commission believes that irrelevant, since that case dealt with the this is not the right time to embark on the notion of public policy under the Brussels discussion sought by the French Govern- Convention and with a dispute over the ment concerning the balance of interests right to a defence. Finally, the Commission established in the Directive. That dis- states that the case-law of the European cussion could have taken place when the Court of Human Rights contains a prin- Directive was being drafted and could have ciple of proportionality under which cer- continued during the revision process. tain restrictions on the right of access to the However, where a directive's transposition courts may be laid down, provided that into national law is at issue, it is not they are based on legitimate grounds. 13 In appropriate to discuss the choice made by this case, the ground in question is the the Community legislature in seeking to balance the different interests at issue.

67. The aforementioned legislation, which is tailored to the specific needs of the individual — employee, tenant, consumer, 64. To my mind, the arguments put for- etc. — is characterised by the precision ward by the French Government in defence with which it defines its scope, rottone of this plea in law are not sufficient to materiae, ratiotie personae, and, some- justify the incorrect transposition of times, ratiotie loci. Individuals and interests Article 9. not included in the scope of the legislation may not rely on the special protection provided by it. Therefore, they must rely on general rules of private law, such as ins commune.

65. The weightiest argument set out in the defence is the first one, which can be summarised in the following question: does the lower threshold laid down in Article 9 of the Directive amount to a denial of justice and, in the event of an affirmative answer, does it therefore amount to an infringement of Article 6(1) of the Euro- pean Convention for the Protection of 68. The subtle distinctions introduced into Human Rights and Fundamental Free- this 'special' legislation by legislatures are doms? the result of a process which is, for the most I - 3849

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decision which was taken by the Commu- liable only where the identity of the pro- nity legislature and was then translated into ducer is unknown, Article 1386-7 of the one of the provisions of the Directive. The French Civil Code provides that the sup- validity of that provision has not, however, plier will be liable on the same basis as the been called in question. In proceedings to producer. determine whether or not a national legis- lature has complied with that provision, a defence of this nature is of no avail, as is the argument that in the future the Community legislature may be faced with balancing interests in the same way as the disputed national legislation.16 In accordance with the powers granted to the Community legislature by the EC Treaty, the Court is required to refrain from giving judgments 74. The Commission acknowledges that, which anticipate, or might anticipate, the under the French legal system, a supplier formation of a view by the legislature. may take action against a producer to enforce a guarantee. However, the Com- mission is of the opinion that a situation where an injured person sues a supplier, who must in turn take action against the producer to enforce the guarantee, is not the same as one where an injured person may sue the producer directly. The purpose of Article 3(3) of the Directive is precisely to avoid a proliferation of legal actions. B — Second plea in law: incorrect trans- position of Article 3(3) of the Directive into national law

75. The French Government states that Article 1386-7 of the Civil Code in fact 1. Pleas in law and arguments of the parties achieves the aim of the Directive because the end result is that the producer must pay compensation. Moreover, Article 1386-7 merely confirms a national rule of liability which was already in existence at the time when the Directive was notified, and it therefore complies with Article 13 of the 73. Unlike Article 3(3) of the Directive, Directive. In any event, the rule in question which provides that the supplier will be is a national rule of civil procedure over which the Community legislature had no jurisdiction at the time when the Directive 16 —Sec Case C-236/88 Commission v Frame |1990| F.CR I-3163. was adopted.

80. Unlike Article 7(d) and (e) of the 17 —Case C-74/91 Commission v Germany [1992] ECR Directive, which sets out the cases where 1-5437. See also the judgment in Case C-280/95 Commis- sion v Italy [1998] ECR I-259, paragraphs 13 and 14. a producer will be exonerated uncon-

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ditionally from liability, Articles 1386-11 83. On the substantive issue, the French and the second paragraph of 1386-12 of Government states that the third plea in the Civil Code provide for producers to be law concerns a matter in respect of which exempt from liability provided that they the Commission is itself considering an have taken the steps necessary to avert any amendment. In addition, the Directive damage which may arise as a result of a allows Member States a certain amount of defect. freedom in relation to the exemption from liability for development risks. The French Government submits that, as a result, that exemption may be excluded in the case of certain products. The French Government finds it incomprehensible that the exemp- tion should not be subject to the obligation to monitor products which are sold, since 81. The French Government states that the that would be a logical complement to the Commission included in the application safety principle. The French Government two arguments which were not set out in concludes that such an obligation is the reasoned opinion. The first argument explicitly laid down in Directive 92/59 concerns the notification that the Commis- and that it also entails an obligation to sion did not intend to submit a proposed ensure that products are traceable, an amendment to Article 7(e); the second obligation to keep up to date with new concerns the transposition into national scientific developments, and an obligation law of another directive, namely Council to inform those individuals who are Directive 92/59/EEC of 29 June 1992 on exposed to them of new risks which have general product safety. 18 The French Gov- come to light. ernment concludes from the foregoing that this plea in law must be dismissed.

2. Analysis 87. The French Government's defence is unconvincing. It is settled case-law of the Court that a Member State's obligations under Community law must be determined by reference to the state of Community law on the date when the action was brought. 21 Expectations regarding amendments to the 85. I will be brief on the question of disputed legislation cannot be used to admissibility. A comparison of the rea- justify the defects complained of. Nor is it soned opinion and the application reveals possible to rely on Community provisions that the subject-matter of the plea in law, other than those which it is alleged were that is the nature of the complaint against incorrectly transposed. In the event that the French Government, is exactly the there are unintentional discrepancies same. The fact that the arguments put between the said provisions, it is for the forward by the Commission in support of Community legislature to remedy them. the plea in law are not completely identical Such a situation does not, however, grant in the two documents does not prevent the the Member States a discretionary power to French Government from understanding act as they see fit when transposing direc- precisely the Commission's complaint, tives into national law. which is that Article 7(d) and (e) of the Directive was incorrectly transposed into national law. The Commission has thus fully met the Court's requirement of con- sistency between the reasoned opinion and the application.20 Therefore, in my view, the plea of inadmissibility must be dis- missed.

In Case C-183/00, that the Court should reply to the question referred for a preliminary ruling by the Juzgado de Primera Instancia e Instrucción No 5 de Oviedo as follows:

Article 13 of Council Directive 85/374/EEC of 25 July 1985 on the approxi- mation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products must be interpreted as meaning that it does not preclude the restriction or limitation, as a result of transposition of the Directive, of rights which had been granted to consumers by the legislation of the Member State.

In Case C-52/00, that the Court should:

(a) declare that the French Republic has failed to fulfil its obligations under Articles 3(3), 7 and 9 of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products;

(b) order the French Republic to pay the costs, pursuant to Article 69(2) of the Rules of Procedure. I - 3855